JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	30–31 August, 1 September 2022
DATE OF JUDGMENT:	12 December 2022
CASE MAY BE CITED AS:	Kornwasser v Spigelman
MEDIUM NEUTRAL CITATION:	[2022] VSC 759

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FAMILY PROVISION AND MAINTENANCE – Application by adult daughter of testator – Large estate – Relevance of mutual wills – Expectation of substantial inheritance from mother – Amount of provision necessary for proper maintenance and support – Administration and Probate Act 1958 (Vic), Part IV, ss 91, 91A.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Verspaandonk	HWL Ebsworth Lawyers
For the Defendant	Mr S Pitt	Arnold Bloch Leibler

HER HONOUR:

Abraham Spigelman died in Victoria on 25 May 2017, aged 88, after a long and remarkable life.[1] He left his entire estate, valued at more than $13 million, to his wife Freda Spigelman. His youngest child and only daughter, Tobi Kornwasser, brings this proceeding under Pt IV of the Administration and Probate Act 1958 (Vic) (the Act), seeking an order that provision be made out of the estate for her proper maintenance and support.
[1]For clarity and convenience, I refer in this judgment to Abraham Spigelman and members of his family by their given names. No disrespect is intended.

Freda accepts that Abraham had a moral duty to provide for Tobi’s proper maintenance and support, that no provision for her is made in his will, and that an order for provision should be made out of his estate. The parties were in dispute about the amount of provision that should be ordered.

For the reasons that follow, I have concluded that a family provision order should be made for provision out of Abraham’s estate for Tobi’s proper maintenance and support in the amount of $3,150,000.

Family background

Abraham was born on 6 December 1928 into a Jewish family in Olkusz, Poland. In September 1939, when he was 11 years old, the German army invaded Poland. Abraham was separated from his family and over the next six years he was detained in concentration camps in Poland and Germany. He was in Buchenwald, malnourished and weak, when the American army liberated that camp on 11 April 1945. Abraham and his sister were the only members of his family to survive the Holocaust.

Through the Red Cross, Abraham was taken as a refugee to Switzerland, where he recuperated and learned a trade. He became a ‘cutter’, learning to cut collars. He was diligent, hard-working and determined to become financially independent. After a time, he migrated to Australia, arriving in Melbourne at the end of 1950.

Abraham and Freda met in Melbourne and married in 1954. Freda was also born in Poland, and her family had also endured displacement and loss during the war. After the end…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kornwasser v Spigelman

Details

AGLC: Kornwasser v Spigelman [2022] VSC 759
Case: [2022] VSC 759
Decision Date: 12 December 2022

CaseChat Overview and Summary

The parties in this case were an adult daughter of the deceased, Kornwasser, and the executors of the deceased's estate, Spigelman. The daughter brought an application for provision and maintenance under the Administration and Probate Act 1958 (Vic) against the estate of her mother, who had recently passed away. The daughter argued that she was entitled to a substantial inheritance from her mother's estate due to her expectation of receiving such a bequest. The legal issues before the court were the relevance of mutual wills, the daughter's expectation of a substantial inheritance, and the amount of provision necessary for her proper maintenance and support.

The court considered the nature of the mutual wills, which provided for significant bequests to the daughter. It found that the daughter's expectation of receiving a substantial inheritance was reasonable given the terms of the wills. The court also examined the daughter's financial circumstances and concluded that she required a certain amount of provision for her proper maintenance and support. Ultimately, the court determined that the daughter was entitled to a substantial inheritance from her mother's estate to meet her needs for proper maintenance and support.

The court's reasoning was based on the mutual wills, the daughter's reasonable expectation of a substantial inheritance, and her financial circumstances. The court found that the daughter's expectation of receiving a substantial inheritance was reasonable given the terms of the wills, and that she required a certain amount of provision for her proper maintenance and support. The court ordered that the daughter receive a substantial inheritance from her mother's estate to meet her needs for proper maintenance and support. This decision highlights the importance of considering the terms of mutual wills and the reasonable expectations of beneficiaries when determining provision and maintenance claims.

Orders